Rogan and Hadley (Child support)

Rogan and Hadley (Child support) [2023] AATA 4294 (25 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025975
APPLICANT:  Mr Rogan
OTHER PARTIES:  Child Support Registrar
Ms Hadley

TRIBUNAL:Senior Member S Trotter
DECISION DATE: 25 September 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the children are 15% to Mr Rogan and 85% to Ms Hadley effective from 11 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – care from start of administrative assessment – care the parents have had and were likely to have for remainder of care period – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

As relevant to this application, Mr Rogan and Ms Hadley are parties to a child support case registered with Services Australia – Child Support (Child Support) from 11 January 2023 in relation to financial support to be provided for [Child 1] (born 2018) and [Child 2] (born 2020) (the children). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for the children utilised in calculation of the child support liability from the commencement of the case on 11 January 2023.
On 18 January 2023, Child Support decided to accept an application for assessment of child support by Ms Hadley and determined percentages of care of the children of 88% for Ms Hadley and 12% for Mr Rogan from 22 December 2021, effective from the assessment start date of 11 January 2023.

On 16 February 2023, Mr Rogan objected to this decision and, on 4 April 2023, a Child Support objections officer disallowed the objection.

On 19 April 2023, Mr Rogan lodged an application with the Tribunal seeking an independent review of Child Support’s decision, stating as follows:
The Applicant and other parent have come to an agreement as to care. The Applicant was unable to submit the supporting evidence to CSA in time and the decision it made does not reflect the parental agreement.

The hearing of the application before the Tribunal was held on 23 August 2023. Mr Rogan and Ms Hadley both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.
The Tribunal adjourned following the hearing to allow Mr Rogan to provide further documents. Copies of those documents were provided to Ms Hadley with opportunity given for her to respond or comment upon the documents by close of business on Friday 22 September 2023. No response or comment, or a request for further time in which to do so, was received from Ms Hadley in relation to the further documents from Mr Rogan and the Tribunal therefore proceeded to make its decision on 25 September 2023.
In considering the application, the Tribunal took into account the oral evidence of Mr Rogan and Ms Hadley, the documentary material provided by Child Support to the Tribunal, the applicant and the second party (Exhibit 1, pages 1 to 56) and documents provided by Mr Rogan after the hearing (Exhibit A, pages 1 to 12).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent from the commencement of the child support case.

CONSIDERATION

Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.
The term pattern of care is not defined in the legislation. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.
Both sections 49 and 50 first require consideration of whether the relevant person has had or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care … (the) person has had, or is likely to have, during the care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.
The legislative test therefore first requires consideration of whether a person has had of is likely to have a pattern of care of a child for a care period and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.
As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘had had’ or ‘is likely to have’ depending upon when relative to the care period the decision is being made.
Mr Rogan’s position is that there was an agreement that his care of the children was to be about 16% from January 2023 and that he and Ms Hadley have now agreed on a parenting plan.
Ms Hadley’s position is that they did have an agreement for this year and that is when she applied for the child support assessment. Mr Rogan wanted more nights but she did not agree to more nights at that stage because Mr Rogan was not able to confirm dates. They had a mediation the week prior to the hearing and have agreed what the care is going to be in 2024, so once that agreement is signed she will submit the new care arrangements to Child Support. The Tribunal discussed that the only issue before it in relation to this application is the care to be recorded for each parent from initial registration of the child support case from 11 January 2023 and that further changes in care can be notified to Child Support when they occur, such as if care changes in 2024 as is proposed.
Ms Hadley disagrees with a percentage of care of 16% for Mr Rogan from initial registration. She supports Child Support’s finding of 12% for Mr Rogan.
Ms Hadley’s evidence was that the date of separation was 21 December 2021 but there was no arrangement in relation to care until January 2023. Ms Hadley referred the Tribunal to a Parenting Agreement dated 27 September 2022 (pages 27 to 30 of Exhibit 1). Ms Hadley said that prior to this agreement she had 100% overnight care. The Tribunal noted that the agreement included:
(a) A monthly timetable to be agreed before the end of November 2022 in relation to Mr Rogan’s care of the children;
(b) From November 2022, Mr Rogan was to have monthly care of the children from Thursday until Sunday (3 nights);
(c) Ms Hadley was to have care of the children for Christmas 2022;
(d) In January 2023, Mr Rogan was to have care of the children for a 5-day period to 7-day period and a 3-day period; and
(e) That the children would spend Father’s Day with Mr Rogan and Mother’s Day with Ms Hadley.
(f) From 2023, Christmas and Easter care was to alternate with Mr Rogan having care in the odd years and Ms Hadley having care in the even years (with Christmas care being for a five to seven day period).
Ms Hadley’s evidence was that the care Mr Rogan actually had to the date of hearing (23 August 2023) in 2023 was:
January – 8 nights
February – 1 night
March – 3 nights
April – 8 nights
May – 1 night
June – 3 nights
July – 3 nights
August – 5 nights to date of 23 August 2023 hearing
The Tribunal noted that the parenting plan contemplated that Mr Rogan would have three nights overnight care, with possible other care. Ms Hadley confirmed that it was expected that Mr Rogan would have at least three nights care of the children per month.
Mr Rogan agreed that the nights of care he has actually had to date in 2023 are as per Ms Hadley’s evidence. Mr Rogan’s evidence was that there have been a number of other proceedings taking place in relation to property and parenting. He said there have been all sorts of things occurring, including him giving up time in consideration of Ms Hadley, for example for her birthday and for Mother’s Day. He said this was not in contemplation of him being financially penalised for his cooperation.
Mr Rogan said that he calculated 16% based on expecting to have 58 nights care of the children for the year. When queried as to how this has been calculated by him, Mr Rogan referred to an email between the parents (page 31 of Exhibit 1), noting what was contemplated was him having care of the children three nights per month in the country and then him having additional care in Sydney. Mr Rogan said that 58 nights has been calculated from three nights per month in the country, one to two nights a month in the city and extended nights on holidays. He said that, as at August 2023, they are currently one or two nights below target but provided the remainder of the year is implemented as planned, it will come to 58 nights for 2023. Mr Rogan said that the care arrangements have been the subject of emails back and forward between him and Ms Hadley since January 2023. They had not been able to finalise an agreement and commit it to Child Support as Ms Hadley wanted to know exactly where the care would be occurring before she agreed to care occurring. That has been covered in recent emails, copies of which can be provided after the hearing.
The Tribunal asked Ms Hadley whether as at January 2023 she had an expectation of how much care Mr Rogan would be having of the children. Ms Hadley said that the parenting agreement provided for three nights per month for Mr Rogan and other times as agreed. Mr Rogan asked for an additional two nights with the children in Sydney every month but because he was not able to give dates or any certainty around that she did not agree with that arrangement. Mr Rogan proposed an extra two nights in May in Sydney and that didn’t happen. Mr Rogan then proposed an extra three nights in June in Sydney and that didn’t happen. Mr Rogan proposed an extra night in July in Sydney and that didn’t happen. Ms Hadley said that she was not going to agree to an increased percentage of care for Mr Rogan until there was certainty about the arrangements.
Mr Rogan raised a number of matters of understandable importance to him in relation to the reasons for and what happened at separation and the reasons why care by him of the children may or may not have happened from time to time. He stated that the children had been removed from the matrimonial home then requiring him to pay child support such that this has impacted the money available to him to come and stay in Sydney (more than 400 kilometres from the matrimonial home) to see his children. He needs the care to be recorded as 16% so that he has enough money to go to Sydney to see the children to have the care. He is caught in a vicious circle. If he had known about all of these matters at the time, he would not have been so generous as to allow Ms Hadley extra time, at what is now transpiring to have been at his cost, for times like her birthday and Mother’s Day when he would have otherwise had care of the children. As discussed with Mr Rogan, while these are matters of understandable importance, these are not matters directly relevant to the issue to be determined by the Tribunal as to what care has actually happened, and is now likely to happen, for the 12 months from January 2023 and the Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.
Mr Rogan’s evidence was that of the 12 scheduled trips by him for care of the children, from January 2023 to August 2023, all but two have happened as planned. With the other two trips, one was reduced from two nights to one night and one Sydney stay did not happen in the month of July.
When queried as to what is expected from August 2023, Ms Hadley said that Mr Rogan would have three nights care per month, plus additional nights in Sydney when confirmed, and that would continue until a new arrangement is agreed and starts, which is expected to be from January 2024 (following the mediation the week before the hearing). Three nights per month care by Mr Rogan each month was the base minimum. Ms Hadley said that she was open to five nights per month care by Mr Rogan but there has been no pattern of the extra two nights happening every month. There were extra nights, in addition to the three nights, in February (one extra night), April (one extra night), May (one extra night) and August (three extra nights). That is, on three occasions care in addition to three nights by Mr Rogan did not happen and for the other months on four occasions the care additional to three nights per month was only one night per month.
Given the parties’ evidence that they communicated in January 2023 about care of the children for the coming year (with new care arrangements to commence in January 2024 following a mediation the week prior to the hearing), the Tribunal is satisfied that a 12-month care period from 1 January 2023 to 31 December 2023 is appropriate in the circumstances in relation to the percentage of care determinations to be made from the beginning of the child support case.
Notably the percentages of care to be determined are not based upon an agreed percentage of care as suggested by Ms Hadley or Mr Rogan needing at least 16% care reflected to financially enable him to access care of the children. Rather, as already noted, it requires the Tribunal to first consider whether either parent has had or is likely to have a pattern of care of the children for the appropriate care period and to then assess the actual care the person has had, or is likely to have, during the care period.
The Tribunal is satisfied on the evidence that both Mr Rogan and Ms Hadley have had, and were likely to have, a pattern of care of the children from the start of the care period.
The Tribunal then considered the actual care that each Mr Rogan and Ms Hadley ‘has had, or is likely to have’ during the care period based upon what care has actually already occurred and is known and the likely care from then for the remainder of the care period.
It is not in dispute that the actual overnight care that Mr Rogan had of the children from 1 January 2023 to 23 August 2023 was 32 nights to 23 August 2023 (with Ms Hadley having the balance of nights of care). The Tribunal acknowledges Mr Rogan’s evidence as to why his care during that period was actually less than it might otherwise have been if he had not acquiesced to Ms Hadley having care of the children for special occasions when he would otherwise have had care of the children. Nonetheless, the actual care that Mr Rogan had from 1 January 2023 to 23 August 2023 was 32 nights.
The documents provided by Mr Rogan after the hearing included an email from Mr Rogan to the Tribunal dated 29 August 2023 (Exhibit A, page 1), stating, among other things:
(a) The email dated 8 January 2023 appearing at page 31 of Exhibit 1 is an email between him and Ms Hadley discussing (his) access to the children for the year ahead with subsequent correspondence between them indicating a consensus on the number of nights (of his care) and in principle agreement, albeit with issues as to particulars.
(b) His forfeiting of weekend trips (of the children to the country to be in his care) in consideration of ‘special dates’ for Ms Hadley was never done in contemplation of him paying a financial penalty for doing so.
(c) Financial hardship in him getting to Sydney over the last couple of months has seen only minor adjustments to the schedule.
(d) If the application is resolved (with him being recorded as 16% care), he would then be in a position to comply with specific plans to provide Ms Hadley with greater certainty around pickups and drop offs.
An email of 2 July 2023 from Mr Rogan to Ms Hadley (Exhibit A, page 8) also provided by Mr Rogan after the hearing, shows the proposed care of the children and a further email between Mr Rogan and Ms Hadley dated 19 September 2023 provided by Mr Rogan (Exhibit A, page 12), shows the following proposed and actual care by Mr Rogan in 2023:
Proposed Care          Actual Care
January   8  8
February   2  1
March   3  3
April  8  8
May   0  1
June   6  3
July  4  3
August  7  5
September  4
October  7
November  6
December  9
Actual care of the children by Mr Rogan up to September 2023, as per the 19 September 2023 email, is shown to be 32 nights. This is consistent with the undisputed evidence of both parents at hearing that Mr Rogan had had 32 nights care to the date of the hearing.
The Tribunal then considered the actual care Mr Rogan and Ms Hadley were likely to have for the balance of the care period based on the evidence of what has occurred to date and the parties’ evidence regarding what is likely to occur going forward until January 2024.
Ms Hadley was invited to provide a response to or comment on the further material provided by Mr Rogan after the hearing prior to close of business on 22 September 2023. No response or comment has been received.
The Tribunal is satisfied based upon the evidence at hearing and the 19 September 2023 email (the most recent evidence of what care has occurred and is likely to occur going forward), that Mr Rogan is likely to have the care proposed in the 19 September 2023 email (as set out in paragraph 34 of these Reasons) for the balance of the care period.
The actual care that Mr Rogan has had and is likely to have for the care period is therefore 32 nights (actual care to September 2023) plus 26 nights (proposed and likely care from September 2023), totalling 58 nights in the care period. The percentage of care which corresponds to Mr Rogan having this actual care is 15.8%, rounded down to 15%,[1] and the percentage of care which corresponds to Ms Hadley having this actual care is 84.2% rounded up to 85%.[2]
[1] Pursuant to section 54D which applies where the responsible parent’s care is less than 50%.
[2] Pursuant to section 54D which applies where the responsible parent’s care is more than 50%.

Therefore percentage of care determinations of 15% for Mr Rogan and 85% for Ms Hadley will apply from the start of the child support case.
As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

DECISION

[2023] AATA 4294

25 September 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness